In Depth

School is back in session, and a new set of court rulings issued during the summer break may make it more difficult for school
administrators to decide how to handle inappropriate or potentially disruptive online activities carried out by students off-campus.

In an age where cyber-bullying and school violence are constant concerns and the Internet has changed how students interact,
the legalities of how far schools can go in disciplining and protecting students raise questions for school officials. Attorneys
representing Hoosier schools say more often than not, administrators are taking a cautious approach to disciplining students
for off-campus online conduct, even when that conduct may violate school policies.

“Looking at constitutional issues relating to schools, this topic of schools being able to regulate off-campus conduct
is on the front burner and is a hot button issue, particularly when talking about written communications or other forms of
speech that might be protected,” said Noblesville attorney Seamus Boyce, who represents schools statewide and has been
watching these student-speech cases for years. “Schools, when they’re aware of these issues, are very cautious
and they’ll have to be extra cautious now.”

On Aug. 10, Chief Judge Philip Simon in the Northern District of Indiana ruled on the case of T.V. and M.K. v. Smith-Green
Community School Corp. and Austin Couch, No. 1:09-CV-00290. In this case involving a school district located near Fort
Wayne, the judge ruled that the First Amendment protected the online photos posted by two teenage girls, and that administrators
shouldn’t have disciplined the pair.

The two teenagers were sophomores at Churubusco High School when the incident happened during the summer of 2009. They attended
sleepovers with friends and took suggestive pictures of themselves posing in provocative clothing, kissing and licking novelty
phallic-shaped lollipops, and simulating sexual acts. They posted the pictures on their Myspace and Facebook pages, making
them visible to online friends. Though they didn’t bring the pictures to the 400-person school and the photos didn’t
identify the girls as students at the school, other parents and staff members brought the online images to the attention of
the superintendent and principal on claims they were disrupting and causing concern in the school and on the volleyball team
of which both girls were members. The girls were later suspended from extracurricular activities, which meant they couldn’t
participate in several volleyball games.

Challenging that punishment, the American Civil Liberties Union of Indiana filed a federal lawsuit against the district claiming
that the school’s policy was unconstitutional and needed to be altered or removed. In response to the lawsuit, Smith-Green
Community School Corp. stated that the pictures were obscene and constituted child pornography and as such are not protected
speech under the First Amendment.

In his 38-page ruling, Chief Judge Simon disagreed with the school and found the photos should be protected despite their
suggestive and racy nature.

Though the photos were “juvenile and silly,” Chief Judge Simon found the conduct was intended to be humorous
to those teenagers who might view them online and that the Supreme Court of the United States has held that kind of “expressive”
conduct is protected under the First Amendment. The judge ruled that the photos can’t be considered obscene or along
the lines of sexual conduct, child exploitation, or child pornography, according to state or federal law.

He relied on the ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which
involved Iowa students wearing black Vietnam War opposition armbands and led the SCOTUS to define the constitutional rights
of students in public schools using a test to determine whether a school’s disciplinary actions violate a student’s
First Amendment rights. Courts nationwide have used the Tinker standard, even though the SCOTUS hasn’t addressed
how far Tinker goes in the 21st century. Some uncertainty exists as to when courts should apply school-speech precedent.

Boyce

Chief Judge Simon used the Tinker standard and cited a pair of 3rd Circuit rulings from June to find in favor of
the Indiana students. He found the girls’ photographs do not rise to the level of “substantial disruption,”
as defined by Tinker, and that “petty disagreements” on the volleyball team didn’t justify infringing
on student-speech rights. He also determined the school policies are vague and overbroad and are unconstitutional in permitting
discipline based on the principal’s conclusion that T.V. and M.K. had brought “discredit or dishonor” to
themselves and the school. He issued an injunction against the school from enforcing that standard.

Attorneys from the two Fort Wayne law firms representing Smith-Green schools say a decision hasn’t been reached on
whether an appeal will be filed with the 7th Circuit, and they declined to speak about the specific case or issue as the litigation
remains pending.

From a statewide perspective, Boyce believes schools will have to be more cautious up front and determine whether off-campus
speech actually has a connection to school and if it creates a real, substantial risk to the school, rather than an intangible
one. The courts haven’t offered an answer on what might be a foreseeable risk, and that becomes the school’s responsibility.

“There must be a balance between schools being indifferent to harassment they know about and going too far and violating
the free speech rights of students,” he said. “That’s not an easy line to find, and this analysis (from
Judge Simon) might lead some to turn away from disciplining that altogether. If a school wants to start regulating how students
treat themselves and act off-campus, even if it rolls onto campus somehow, then they’re rolling the dice and could be
sued.”

Calling in parents to discuss an issue could be a middle-ground solution, Boyce suggested.

Wheeler

Indianapolis attorney Tom Wheeler, who represents schools throughout the state and has presented on this issue nationwide,
said he expects the SCOTUS will be asked to take one of the 3rd Circuit cases that he was involved with.

“The problem these decisions pose is that they seem to imply that schools have no power to regulate off-campus cyber
speech in any situation,” he said. “If students have a First Amendment right to say and post whatever they want
off-campus, how do we fulfill our legal duty to protect students from harassment and issues such as cyber-bullying that we’re
still liable for? It’s a struggle to figure out how schools can harmonize that obligation to protect students with those
First Amendment rights, and this puts schools in an absolute bind.”

Wheeler thinks school administrators should be able to discipline students for any off-campus conduct that disrupts the education
of one child – even if there is no connection to the school. He plans to continue advising schools to discipline students
for activity that could lead to some form of harassment or bullying or issue in or out of school. It’s an issue of being
sued by the cyber-bully or by a grieving family that expected the school to protect the student, he said.

“We need guidance from the Supreme Court, because the Tinker standard is effectively meaningless for cyber
speech and the on/off-campus distinction just doesn’t work anymore,” Wheeler said. “Not when you have every
kid connected to the Internet the way they are now, and something posted online is like a hand grenade that you throw from
off-campus and it goes off somewhere else. The risk is there.”•

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